Rink v. Citibank, NA et al
ORDER dismissing as moot 8 Motion to Dismiss; dismissing as moot 11 Motion to Dismiss; affirming 17 Memorandum and Recommendations. Signed by Chief Judge Robert J. Conrad, Jr on 3/7/2013. (Pro se litigant served by US Mail.)(eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CITIBANK, N.A., CITIBANK,
SOUTH DAKOTA, N.A.,
BERNHARDT AND STRAWSER P.A., )
TONYA URPS, and MICHAEL STEIN, )
THIS MATTER comes before the Court on Defendants Bernhardt and Strawser P.A.,
Tonya Urps and Michael Stein’s Motion to Dismiss, (Doc. No. 8), Defendants Citibank, NA,
Citibank, and South Dakota, N.A.’s Motion to Dismiss, (Doc. No. 11), and the Magistrate
Judge’s Memorandum and Recommendation and Order (“MR&O”), (Doc. No. 17), granting
Plaintiff’s Motion to Amend Complaint and recommending that this Court deny Defendants’
Motions to Dismiss as moot. The parties have not filed objections to the MR&O and the time for
doing so has expired. FED. R. CIV. P. 72(b)(2).
The procedural history in this case is somewhat obtuse. Plaintiff filed a Complaint, (Doc.
No. 1), on October 11, 2012. Defendants Bernhardt and Strawser P.A., Tonya Urps and Michael
Stein filed a Motion to Dismiss, (Doc. No. 8), on December 13, 2012, and Defendants Citibank,
NA, Citibank and South Dakota, N.A. filed a Motion to Dismiss, (Doc. No. 11), on January 9,
2013. Plaintiff filed a Motion to Amend Complaint, (Doc. No. 16), on January 16, 2012.
In granting Plaintiff’s Motion to Amend, the Magistrate Judge recommended that this
Court dismiss as moot the pending Motions to Dismiss. See (Doc. No. 17). The Magistrate
Judge further indicated that Plaintiff should file his amended complaint on or before January 25,
2013. However, Plaintiff had already attached a proposed amended complaint to his Motion to
Amend. See (Doc. No. 16-1).
On January 29, 2013, Plaintiff filed a Response to Defendants’ Motions to Dismiss,
asking this Court not to dismiss his suit and again requesting leave to amend his Complaint. See
(Doc. No. 18). On February 8, 2013, Defendants Bernhardt and Strawser P.A., Tonya Urps and
Michael Stein filed a Reply to Plaintiff’s Response. See (Doc. No. 20). In their Reply,
Defendants ask this Court to dismiss Plaintiff’s original Complaint as a sanction for his failure to
file an amended complaint on or before January 25, 2013. (Id.).
STANDARD OF REVIEW
The district court may assign dispositive pretrial matters pending before the court to a
magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. §
636(b)(1)(B). The Federal Magistrate Act provides that “a district court shall make a de novo
determination of those portions of the report or specific proposed findings or recommendations
to which objection is made.” Id. at § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983). However, “when objections to strictly legal issues are raised and no factual issues are
challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir.1982). Similarly, de novo review is not required by the statute “when a party
makes general or conclusory objections that do not direct the court to a specific error in the
magistrate judge’s proposed findings and recommendations.” Id. “[I]n the absence of a timely
filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting FED. R. CIV. P. 72 advisory committee’s note).
Under Rule 72(b) of the Federal Rules of Civil Procedure, a district court judge shall
make a de novo determination of any portion of a Memorandum and Recommendation to which
specific written objection has been made. FED. R. CIV. 72(b). No objection to the MR&O
having been filed, the parties have waived their right to de novo review of any issue covered in
the MR&O. Nevertheless, this Court has conducted a review of the MR&O and other documents
of record and, having done so, hereby finds that the recommendation of the Magistrate Judge is,
in all respects, in accordance with the law and should be approved.
It is well settled that a timely-filed amended pleading supersedes the original pleading,
and that motions directed at superseded pleadings must be dismissed as moot. Young v. City of
Mount Ranier, 238 F. 3d 567, 573 (4th Cir. 2001) (“The general rule . . . is that an amended
pleading supersedes the original pleading, rendering the original pleading of no effect.”); see also
Collin v. Marconi Commerce Sys. Employees’ Ret. Plan, 335 F. Supp. 2d 590, 614 (M.D.N.C.
2004) (“Earlier motions made by Defendants were filed prior to and have been rendered moot by
Plaintiff’s filing of the Second Amended Complaint”); Turner v. Kight, 192 F. Supp. 2d 391, 397
(D. Md. 2002) (denying as moot motion to dismiss original complaint on grounds that amended
complaint superseded original complaint). Accordingly, the Court ADOPTS the
recommendation of the Magistrate Judge as its own and DISMISSES Defendants’ Motions to
Dismiss as moot.
IT IS, THEREFORE, ORDERED that:
The Magistrate Judge’s Memorandum and Recommendation, (Doc. No. 17), is
Defendants Bernhardt and Strawser P.A., Tonya Urps and Michael Stein’s Motion
to Dismiss, (Doc. No. 8), is DISMISSED as moot; and
Defendants Citibank, NA, Citibank, and South Dakota, N.A.’s Motion to Dismiss,
(Doc. No. 11), is DISMISSED as moot.
Signed: March 7, 2013
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